David Sarasohn: Once again, Merkley's had his fill of the filibuster

When Jeff Merkley goes back to the U.S. Senate tomorrow, he'll be looking for a fight.

His position is that the Senate Republicans started it.

Or rather, that they never stopped.

Ever since getting to the Capitol in 2009, Merkley has been in the front of the fight to change the filibuster rules that let a minority keep the Senate from acting on anything. At the opening of Congress in January, after months of work by Merkley and Sen. Tom Udall, D-N.M., for a major rules change, the Senate Democratic leadership instead accepted an informal agreement with Republicans that was supposed to make the Senate more effective without an actual rules fight.

Since then, says Merkley unhappily, the Senate has seen the first-ever filibuster of a nominee for secretary of defense. Forty-three Republicans have pledged to filibuster any nominee to head the Consumer Financial Protection Bureau until the job is rewritten to their satisfaction. A filibuster has forced the withdrawal of a nominee for the high-level U.S. Court of Appeals for the D.C. Circuit -- which now has four vacancies and no Obama appointees.

Merkley wants to reopen the rules debate, right now. "The conversation is very much alive," he said last week. "That can be attributed to my Republican colleagues, who promised comity, and that did not materialize."

Both Majority Leader Harry Reid, D-Nev., and Majority Whip Dick Durbin, D-Ill., have suggested that the Senate may indeed return to the rules issue, and Merkley declares that other Democrats are getting ready. "Many of my colleagues are absolutely beside themselves with frustration," said the senator, "and that frustration is rapidly turning to fury."

As for the difficulty in reopening the rules debate several months into a session, Merkley cites a precedent from 2005. At that time, a Republican Senate majority was being blocked by a Democratic minority, and Republicans threatened a "nuclear option" of banning all filibusters on judicial appointments. Instead, well into the session, the two sides made a deal limiting judicial filibusters to extreme cases.

To Merkley, the 2005 episode shows that changes can happen during a session. It also shows that real change requires new rules, not handshake agreements.

Sen. Jeff Merkley renews his attack on the filibuster.Benjamin Brink

The Senate now sees endless delays for appeals court nominees who were never controversial at all. Last month, the Senate confirmed Richard Taranto 91-0, 484 days after he was nominated. It took Robert Bacharach 263 days to get confirmed 93-0, even with the support of prominent GOP Sen. Tom Coburn of Oklahoma. Also in February, William Kayatta was confirmed 88-0 after 300 days. The typical wait is longer than in any previous administration.

Currently, there are 19 vacancies in federal circuit courts and 66 in district courts. Among those waiting is Michael J. McShane of Portland, nominated to the Oregon U.S. District Court by Obama last September.

During his recess town halls around the state, Merkley has talked about the filibuster problem. "We may get frustrated by the state Legislature, but at least it's functioning," he noted at Klamath Community College last Tuesday. "The federal legislature is paralyzed."

Friday, Merkley warned the Portland City Club, "We must fix the broken Senate and we must fix the filibuster. ... This paralysis brings cynicism. That frustration is just a rot in the core of American public life that we must end."

In his Friday web chat, The Washington Post's Chris Cillizza responded to a questioner who wondered whether Congress would become functional in his lifetime by asking, "Are you planning to live until 130?"

Merkley, who won't be that old until 2086, has more specific plans, which he's been urging now for three years: no filibusters on motions to proceed (which can chew up another week) or on naming conference committees (the bill has already passed), and if 41 senators refuse to stop debate, make them actually debate on the Senate floor.

Republican Senate leaders have warned that if the Democrats reopen the rules debate now, Republicans will respond by paralyzing the Senate entirely -- a real possibility in a body that often needs unanimous consent to do anything. Merkley doesn't flinch.

"That does increase the leverage for chaos," he agrees. "Should that happen, the majority would have to adopt new rules that can organize the body."